Wednesday, January 05, 2011

Court Dismisses Retaliation Case Against University of Hawaii

Last month, a federal court in Hawaii dismissed the Title IX lawsuit filed by former women's basketball coach Jim Bolla against the University of Hawaii. As we noted when we first blogged about this case in 2009, Bolla claimed that the athletic director terminated his contract in retaliation for the coach's demands for gender equity, while the university claimed that the decision was lawfully motivated by Bolla's abusive conduct towards his players.

But a judge granted the university's motion for summary judgment after determining that Bolla did not establish a prima facie case for retaliation under Title IX, which requires the plaintiff to demonstrate that he suffered some adverse employment action (here, termination) after engaging in protected activity, and that there is evidence to support that his termination was motivated by retaliation rather than a lawful, nondiscriminatory reason.

On the one hand, the court agreed that Bolla's claims to have discussed gender equity concerns with the athletic director (a claim that the university disputes as a matter of fact) sufficiently allege that he engaged in conduct that should be protected from retaliation. The court's reasoning on this point was significant, because it pointedly refused to import from First Amendment law the requirement that an employee be speaking in their personal capacity, rather than in their official capacity, for protection from retaliation to apply. Such an interpretation, which some courts have endorsed (erroneously, in my opinion) leaves coaches without protection from retaliation for just about anything they might say about Title IX as it applies to their team or their job, a position that the judge wisely recognized was inconsistent with the Supreme Court's holding in Jackson v. Birmingham Board of Education (ruling that Title IX prohibits retaliation against a coach who seeks to assert Title IX on behalf of his players).

On the other hand, the court acknowledged that the university articulated a "legitimate, nondiscriminatory reason" for terminating Bolla -- namely, the fact that he had kicked a player, which Bolla did not dispute other than to recharacterize it as "gently" tapping her "buttocks" with his foot. Moreover, Bolla failed to put forth sufficient evidence to demonstrate that the university's stated reason for firing him was actually pretext for an actual motive of silencing his advocacy for gender equity. Bolla attempted to demonstrate this pretext by arguing that it represented a departure from the University's typical way of dealing with coaches' misconduct; specifically, he pointed out that the football coach was not terminated after he publicly made an offensive remark in using the word "faggoty" to describe the pre-game ritual of an opposing team (an incident my co-blogger wrote about here). But the court did not consider the football coach's situation to be comparable enough to Bolla's to have warranted a similar response. The football coach did not physically assault any player; nor, said the court, was there evidence that any members of his own team took offense at his remark. Since Bolla did not provide any evidence that the football coach's comment -- though offensive and certainly painted UH in a negative light -- rose to the level of verbal abuse (let alone, physical abuse, for which Bolla was fired), the university's decision to treat the coaches differently was not evidence that it was actually hiding its true motive of retaliation against him.